U.S. v. Sargent

• Decision Date: 05 February 2003
• Docket Number: No. 02-1839.,02-1839.
• Citation: 319 F.3d 4
• Parties: UNITED STATES of America, Appellant, v. Roscoe B. SARGENT, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

319 F.3d 4

UNITED STATES of America, Appellant, v. Roscoe B. SARGENT, Defendant, Appellee.

No. 02-1839.

United States Court of Appeals, First Circuit.

Heard January 9, 2003.

Decided February 5, 2003.

Rehearing and Suggestion for Rehearing En Banc Denied February 27, 2003.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellant.

Brett D. Baber, with whom Baber & Weeks, P.A. was on brief, for appellee.

Before LYNCH, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

LYNCH, Circuit Judge.

The question on appeal is whether the district court erred in suppressing evidence obtained in a search of an apartment, pursuant to a warrant. The suppression order was based on the brief amount of time — five seconds — between the police officers' knock and announcement and the forced entry into the apartment. Based on the circumstances showing a threat to the safety of the police officers, we hold the suppression order was in error and reverse.

I.

There is no material dispute as to the facts found by the trial court.

At about 7:30 p.m. on December 29, 2000, Special Agent Andrew Miller of the Maine Drug Enforcement Agency (MDEA) sought a search warrant for Roscoe Sargent's apartment in state court, based on information that Miller had received from a confidential informant (CI) only hours before. As his affidavit in support of the warrant stated, that very afternoon a reliable CI had made a purchase of drugs from Sargent at his apartment in Bangor. The controlled buy was recorded through a body microphone worn by the CI; Miller also surveilled the drug purchase from outside the apartment. During the buy, Sargent confirmed that he had a couple of pounds of marijuana and some psilocybin mushrooms for sale. Because of recent MDEA drug busts in the area, Sargent said that he wanted to "dump" (i.e. sell quickly) everything he had and get out of the business until things cooled down. Sargent asked the CI to help him sell the drugs quickly. The CI said that Sargent retrieved the drugs from a large safe, four feet by three feet by three feet, which looked as though it was full of drugs.

Agent Miller did not request a no-knock warrant.¹ The warrant was issued at 7:35 p.m. and, because it was a "daytime" warrant, had to be executed by 9:00 p.m.²

Miller asked the Bangor Police Department's Tactical Team to help him execute the warrant because he had safety concerns, and he briefed the team on those concerns. He had reason to believe that a large number of knives was dispersed throughout Sargent's small, two-room apartment, and that there also might be firearms. This information was not in the warrant, and we infer it came from the CI. Miller later testified at the suppression hearing, "The intelligence that I had received was that anywhere that Mr. Sargent was in the apartment that he could put his hand on a knife."

That same evening, December 29, 2000, Miller and ten police officers from the Tactical Team executed the search warrant. The role of the Tactical Team, according to Bangor Police Officer Gregory Sproul, a member of the team, was "to make the entry, secure the premises and the people within the residence, and then turn it over to MDEA," which would search for illegal narcotics pursuant to the search warrant. At about 8:30 p.m., the group of ten police officers arrived at Sargent's apartment building, entered it, and proceeded down a hallway toward his unit.

Sproul testified at the hearing that upon reaching Sargent's apartment door, both he and another officer, John Heitmann, announced their presence by yelling words to the effect of "Bangor police, search warrant, open the door." At the same time, they knocked on the apartment door. The police officers then waited approximately five seconds. Sproul testified that he thought that five seconds was an appropriate amount of time to wait because he had "safety concerns," and because he had not heard anyone inside respond or make any motion to comply with their request to open the door. After the five second delay, Officer Sproul gestured to the "breaching man," Officer Al Hayden, who then smashed open the apartment door with a single stroke of a battering ram.

The apartment was too small for all of the officers to enter. Some of the officers entered the apartment and found Sargent near the doorway; indeed, any place in the apartment was close to the door of the unit. A search of the apartment revealed, as expected, a cache of marijuana and psilocybin mushrooms. Officers also discovered, as expected, multiple knives and a firearm, a shotgun. There were knives throughout the apartment, in a variety of locations, including one stuck in the arm of the chair where Sargent had been sitting when the officers approached his door.

Sargent and his girlfriend, Heather Fliegelman, both testified that they had been sitting inside the small apartment's front room when they heard, in Sargent's words, "a lot of racket out in the hallway." Sargent rose out of his chair to investigate the noise. As he approached the apartment door, Sargent heard the police officers announcing their presence. Sargent testified that "I hollered that I was opening the door, and I got the door unlocked, but I didn't have a chance to even turn the doorknob because they smashed the door in without giving me a chance." Officer Sproul testified that he did not hear any declaration from Sargent that he was in the process of opening the door.

II.

At the trial level, the courts addressing this issue were of different minds. The magistrate judge heard testimony on the defendant's suppression motion from Miller, Sproul, Sargent, and Fliegelman. In a thoughtful opinion, the magistrate judge recommended denial of the motion to suppress, finding the officers' safety fears both genuine and legitimate and the speed of their actions reasonable in context. The magistrate judge analyzed the case as a de facto "no-knock" case. United States v. Sargent, No. 01-14-B-S, 2001 WL 501030, at *2-*3, 2001 U.S. Dist. LEXIS 5977, at *5-*7 (D.Me. Apr. 30, 2001). The district judge agreed with the magistrate judge's recommendation and denied the motion on May 31, 2001.

In a subsequent opinion issued on July 12, 2001, the district judge, sua sponte, granted the motion to suppress, concluding that he was compelled to do so by the opinion of a panel of this court in United States v. Brown, 251 F.3d 286 (1st Cir.2001). United States v. Sargent, 150 F.Supp.2d 157 (D.Me.2001). The panel opinion in Brown, though, was not the last word; rather, it was withdrawn, as is customary, when this court granted en banc review. United States v. Brown, 263 F.3d 1 (1st Cir.2001). The en banc hearing in Brown ended in a tie vote, which reinstated the district court's denial of suppression in that case. United States v. Brown, 276 F.3d 14 (1st Cir.2002).

Meanwhile, the government had appealed the grant of Sargent's motion to suppress. When the en banc result was reached in Brown, the government asked us to vacate the suppression order and remand this case to the district court to reconsider. We did so. United States v. Sargent, No. 01-2072 (1st Cir. Apr. 18, 2002). On remand, the district court reached a prompt decision and maintained its second position granting the motion to suppress. United States v. Sargent, No. 01-CR-14-B-S (D.Me. May 28, 2002). It held this search was, de facto, a no-knock entry and that exigent circumstances did not justify the search. Id., slip op. at 4.

III.

This court reviews de novo the ultimate conclusion as to whether a search was reasonable within the meaning of the Fourth Amendment. Ornelas v. United States, 517 U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Subsidiary fact-finding by the district court is subject to review only for clear error. United States v. Meade, 110 F.3d 190, 193 (1st Cir.1997). It is evident that the factual findings here are not clearly erroneous. There is no real dispute about the facts. The only dispute is whether the facts lead to the conclusion that the search was unreasonable.

Police acting under a warrant usually are required to announce their presence and purpose, including by knocking, before attempting forcible entry, unless circumstances exist which render such an announcement unreasonable. See Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Wilson incorporated the common-law "knock and announce" rule into the Fourth Amendment reasonableness inquiry. Id. at 929, 115 S.Ct. 1914. In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), a unanimous court held unconstitutional a blanket rule which avoided the case-by-case reasonableness inquiry and suspended the knock and announce rule for felony drug cases. Id. at 392-94, 117 S.Ct. 1416.

The common law knock and announce requirement recognizes the deep privacy and personal integrity interests people have in their homes.³ It also serves to protect the safety of police officers by preventing the occupant from taking defensive measures against a perceived unlawful intruder. See W.R. LaFave, Search and Seizure § 4.8(a), at 599 (3d ed.1996). The common law recognized, however, that the presumption in favor of announcement "would yield under circumstances presenting a threat of physical violence." Wilson, 514 U.S. at 936, 115 S.Ct. 1914.

A very precise Fourth Amendment question is presented in this case. There is no question about whether probable cause existed or whether the warrant was properly executed. There is no question about delay in exercising the warrant, about whether it was executed late at night, or about whether the warrant was valid. There is no question about whether the police knocked or whether their announcement was improper; the announcements were adequate to alert the inhabitants inside. The only question is whether the choice of the police officers to gain forcible entry after...